18 Aug Parental Rights and Immigration & Citizenship Issues for Intended Parents from the U.K. Working with Surrogates from the U.S.A.

Parental Rights & Immigration/Citizenship Issues For Intended Parents from the U.K.Working with Surrogates from the U.S.A.

Introduction

Since late 2008, there has been increased attention paid to the issues affecting intended parents from the U.K. upon their return home with a child born through surrogacy in the U.S., so we’d like to address that here.

First and foremost, it is very important that prospective U.K. intended parents seek the advice of an experienced assisted reproduction lawyer in the surrogate’s birth state, and retain legal counsel in the U.K. before moving forward with a surrogacy arrangement in the United States. It also appears that the U.K. intended parents should consider being matched with a single surrogate rather than a married surrogate, however counter-intuitive that sounds (see discussion below under “Naturalizing the Child as a U.K. Citizen” and to go through an additional U.K. parental order process to confirm their parental rights once they’ve returned to the U.K.

Although the U.K. statutes governing this area have been on the books since 1985 and 1990, a 2008 high court ruling and recent media coverage has changed things. The High Court ruling in the case of In Re X and Y in December 2008, involving U.K. intended parents trying to return home after their child was born in the Ukraine, and a number of surrogates from India in high-risk multiples pregnancies with complications who came to the U.K. for free healthcare, resulted in increased scrutiny of foreign surrogacies from the U.K. media and U.K. government. The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990 (HFEA), recently amended in 2008, are the U.K. laws which relate to surrogacy and parental rights in the U.K.

While these statues have been in effect for quite some time, following the ruling In Re X and Y case and recent events gaining media attention, the attention to and awareness of these statutues has increased.

Summary of the U.K. Law & Position on Surrogacy

Surrogacy Arrangements Act: Under the Surrogacy Arrangements Act, a surrogacy agreement is not enforceable in the U.K. and it is prohibited for a third party to broker a "commercial surrogacy" arrangement. Therefore, current best practice is to categorize/characterize payments to the surrogate as living expense reimbursements similar to an adoption or to arrange an unpaid surrogacy.

Human Fertilisation and Embryology Act 1990 (HFEA): Even though the surrogacy arrangement would be lawful in the United States, the U.K. law will govern the parental establishment following a surrogacy, as the HFEA specifically applies to surrogacies within and outside of the U.K.

Under the HFEA, a surrogate would be legally considered the “mother” of the child and has an absolute right to object to parental rights being given to someone else even if the intended parents and surrogate have obtained a parental order in the U.S. The surrogate may provide her consent; however, during the course of the intended parent’s application for a parental order in the U.K. (if the surrogate is married, her husband must provide his consent as well). Once the surrogate gives her consent under U.K. law, the intended parents can obtain their U.K. parental order (provided other requirements are met as well). Therefore, the intended parents should make an application to the U.K. court, submit the necessary consents, and obtain a U.K. parental order, because the surrogate (and the surrogate’s husband if she’s married) will not be deemed to have fully relinquished her (their) rights until a U.K. parental order is in place.

U.K. Parental Order Process

As part of the U.K. Parental Order application process, the High Court will review the surrogacy agreement and will review the U.S. parental order as “expert evidence from the surrogate country.” A U.S. court order of parental rights will not carry full (or possibly any) legal weight; although, the High Court may consider it, if for nothing else, to determine whether the process that the intended parents completed in the U.S. is considered legal in the United States.

In reviewing the surrogacy agreement, the High Court will consider the underlying financial arrangement. As mentioned above, U.K. law prohibits compensation and only permits payment of expenses reasonably incurred. However, the court, upon review, can retroactively allow reimbursement which goes beyond this so long as it is not disproportionate (in the court’s eyes). The High Court will also require, as mentioned above, consents from the surrogate and her husband if she is married. Under U.K. law, the surrogate cannot give her consent until six (6) weeks after the birth (this is considered a “cooling off” period for careful and full reflection of the “rights” she is perceived to be giving up). A surrogate's husband does not have to wait six (6) weeks to provide his consent.

Very important: The application for a parental order must be lodged within 6 months of the birth. This time limit cannot be extended. The High Court (and these cases are typically heard in London) will typically schedule a hearing and issue its order anywhere between 3 and 9 months from the date of lodging the application.

Who can apply for a parental order?

Under the HFEA and recent amendments to the HFEA, married couples, heterosexual couples who are not married and same-sex couples whether or not they are in a civil partnership (U.K. civil union) can apply for a U.K. parental order, but at least one of the Intended Parents must be domiciled in the U.K. The recent amendments to the HFEA, which take effect on April 6, 2010, expanded application to unmarried heterosexual couples and same-sex couples, and there is a provision allowing for retroactive applications for a parental order for these couples (which is an important step forward since the HFEA otherwise contains no provisions for an extension of the time limit (6 months) to apply for a parental order).

Single parents cannot apply for a U.K. parental order. Single parents will need to adopt or may be able to apply for what’s called a “residence order”, although it really depends on the situation: If the single parent is a man whose sperm has been used and the surrogate is not married, he would not need to do anything further (but technically he would share parental responsibility with the surrogate without further order of a court on the issue of his parental rights).

In summary, we strongly recommend that intended parents returning to the U.K., make plans to apply for a U.K. parental order upon their return. U.K. intended parents should be speaking with experienced attorneys in the U.K. as early as possible in their surrogacy process, for advice that is specific to their situation and for information on estimated costs of the legal process in the U.K. (which could range from £10k to £50k).

Immigration and Citizenship Issues

Another and potentially more pressing issue for U.K. intended parents are the immigration and citizenship issue. This may not be so apparent at first. First and foremost, all intended parents from other countries should speak to a local immigration attorney as early as possible in their surrogacy process to educate themselves on how to prepare to return home and naturalize their child.

A child born in the U.S. is automatically a U.S. citizen and can obtain a U.S. passport for the purpose of flying home upon the presentation of a completed passport application and the child’s birth certificate. The recent increased scrutiny and awareness of foreign surrogacies, however, has caused immigration officials at Heathrow to start asking questions of people returning to the U.K. with a child that was born in another country and, in some cases, detaining them or prohibiting their re-entry.

Some intended parents (straight couples and single mothers) may be able to simply re-enter the U.K. with the child on a U.S. passport without any questions at customs. However, if the intended parents are a same sex couple, or a single male, there may be more questions by the customs agent, so preparation is essential. All new U.K. intended parents through surrogacy must be prepared to state their plans to naturalize their child and will have a limited amount of time to do so once they return. If the intended parents are prepared, have spoken to local counsel and have appropriate U.S. documentation with them upon their return to the UK (birth certificate, court order, U.S. passport for the child, etc.), then the likelihood of being detained or prohibited re-entry is much lower.

Naturalizing the Child as a U.K. Citizen

Technically, because U.K. law requires a U.K. parental order, and this order cannot be applied for until returning to the U.K. acquiring U.K. citizenship for the child prior to the return home could be problematic (unless the U.K. Home Office or the local consulate has given a discretionary or automatic grant of citizenship depending on the circumstances). If the surrogate is not married, and an intended father’s sperm was used and he is a U.K. citizen, then U.K. citizenship should be fairly automatic and routinely given upon return (either automatic citizenship or citizenship by descent), although there are some exceptions.

However, if the surrogate is married, U.K. law presumes the surrogate’s husband to be the father, therefore, the only way to bring the child in to the U.K. legally is with discretionary leave of the U.K. Home Secretary, which can take a long time to get and will probably be conditional on obtaining a U.K. parental order within 12 months (which is not guaranteed, e.g. if the surrogate then refuses to consent or the High Court does not grant the parental order). One other possibility is to apply for temporary entry clearance, which might or might not be granted and would likely be conditioned upon obtaining a parental order. In practice, the question may be one between going back to the U.K. pretty easily and being stuck abroad for a lengthy time…all based on whether the surrogate is single or married. Also, consider that if for some reason the U.K. parental order is not granted at least the intended father (or one father in a same-sex couple) automatically “qualifies” as the child’s father under U.K. law if the surrogate is not married.

Conclusion

While in the past many couples may have re-entered the U.K. with their child (on a U.K. or U.S. passport) and not obtained a U.K. parental order, doing so may give rise to potentially serious complications, including but not limited to: government intervention; the surrogate making a claim for parental rights; the child’s rights of succession/inheritance may be challenged; and child custody determinations pursuant to a divorce may become more complicated and protracted.

The U.K. courts have not yet fully explored whether to give full faith and credit (comity) to foreign court judgments (in the In Re X and Y case there was no formal court process in the Ukraine to establish parentage as there would be in most U.S. states). As more U.K. parental order applications are filed, and the U.K. High Court provides additional guidance in this area, there may be further updates to the above information, but in any event, you should seek current advice from legal counsel in the U.K. and the U.S. regarding your specific situation at any given time. We hope that family formation through surrogacy in the U.K. evolves as it has in much of the United States.

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Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.